The Republican Attack on Senate Filibusters Is Backfiring
by Manuel L. Quezon III
For people used to the British style of parliamentary procedure, the filibuster is a confusing thing. It is a fundamentally American legislative tactic, and as such, familiar only to them. A filibuster is defined by the US Senate itself as “the use of time-consuming parliamentary tactics by a Senator or a minority of Senators to delay, modify, or defeat proposed legislation.” And yet the word “filibuster” is in the air, and a particularly vicious debate is taking place between Republicans and Democracts over a tried and tested senatorial tactic, the filibuster. Democrats, in the minority in the US Senate, have already filibustered 10 of President George W. Bush’s 200 judicial nominations and have been threatening more. Republicans are threatening, in turn, to use their majority status to deprive the Democrats of the filibustering tactic. With 55 members in the Senate, the Republicans have a good chance of changing the rules any which way they want. But the Democrats, in turn, have threatened to invoke every possible Senate rule and tradition to bring the legislative process to a halt, if they’re deprived of the filibuster rule.
As Bugs Bunny would say, “What’s the hubbub, bub?” Article II, Section 2 of the US Constitution states that the President of the United States “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”
Conservative Republicans have long blamed the US courts for being centers of liberal thought; they can’t stand the judicial activism of some judges who have voted against conservative Republican causes such as school prayer; they would dearly love to have the courts turn to the Right, and want to see more religion-friendly, conservative judges on federal benches. They are frustrated by the efforts of liberals and Democrats to resist.
When it comes to an American president’s judicial nominee, the political mathematics are simple: to approve a nominee requires 51 votes, a simple majority in the 100 member US Senate. But to overturn a filibuster — the right of a senator to stand up, and, as long as he is physically able, discourse at length on a topic in order to derail the business of the Senate — requires 60 votes to bring a filibuster to an end, by invoking what is called the cloture rule. When the cloture rule (US Senate rule 22) is invoked, the senators vote on whether to put an end to the debate; if they vote to end the debate, then a nomination can, in turn, finally be put to a vote. In other words, it requires more votes to remove an obstacle (the filibuster) to bringing a nomination to a vote on the floor, than it does to determine the fate of that nomination, once on the floor. The 60-vote requirement has been called a “supermajority” by its advocates, who say this number is justified in controversial issues, and by its critics, who maintain that the tactic defies the clearly expressed provisions of the US constitution.
The New Yorker’s Hendrik Hertzberg, has pointed out that in the 2000, 2002 and 2004 American elections, “the total vote for Democratic senatorial candidates, winning and losing, was 99.7 million; for the Republicans it was 97.3 million,” Hertzberg wrote. “The 44-person Senate Democratic minority, therefore, represents a 2 million-plus popular majority — a circumstance that, unless acres trump people, is at variance with common sense notions of democracy.” This is, perhaps, an extreme position, since in most democracies, it is a winner-take-all situation: representation goes only to the winning party, and legislative majorities are decided only on the basis of the candidates who won. But it does indicate the reasons behind the fervor demonstrated by both sides. It is a war for the soul of America, by a band of conservative, increasingly Bible-thumping Republicans on one side, and the rest of the population, which doesn’t like voting in terms of its religion, on the other.
The last US presidential election has already shown that the Bible-thumpers are better organized, better funded, and more ruthless than their liberal opponents. One of the few places where both sides are restrained by a kind of genteel veneer of playing by the rules, is the US Senate. The very thought of eliminating the filibuster is frowned upon by both sides, at least among older US senators. Their attitude is an old-fashioned one: if we remove it as the majority today, what happens when we are the minority tomorrow? For centuries, this is how the rights of minorities in legislatures have been preserved.
Trent Lott, a conservative Republican, knows full well the implications of denying his Democratic colleagues the filibustering option when it comes to judicial nominations (so far, Republicans have made it clear they only wish to eliminate filibusters against judicial nominees): he’s called it the “nuclear option.” And while Lott and other Republicans have tried to rename it the “constitutional option,” the severity of what they want to do, is obviously clear to them.
It may be, that despite their ideological desire to get their kind of judges at the expense of Senate traditions, the Republicans may be forced to back off. The inexorable nature of Republican dominance in the US Congress seems to be losing steam, as shown by the difficulties of Bush’s recent nominee as ambassador to the UN, an effort abandoned by some moderate Republicans.
Opinion polls indicate Bush and the Republican’s single-minded determination is turning off Americans; their president may have gone a judge too far.